In 2010, in the matter of Brannan v. State of Texas, a Texas appellate court rejected a takings challenge to the State’s Open Beaches Act (OBA), a longstanding statute that affords the public a mechanism to enforce collective rights to access beaches as acquired by dedication, prescription, or custom. Today, the Texas Supreme Court vacated that decision and remanded to the appellate court for further consideration in light of its 2012 holding on rehearing in Severance v. Patterson.

In Brannan, the State, in accord with the OBA, ordered a number of Gulf-front homes removed after erosion and storm events combined to move the first line of vegetation landward of where those homes were located. Fourteen landowners challenged this action as a taking. The appellate court dismissed the landowners’ claims because the beach had been historically dedicated to the public use, and the existence of the homes impeded the public’s access to it.

Today, without hearing oral argument, the Texas Supreme Court vacated that decision and remanded to the appellate court in a vague, two-page per curiam order. While there was no concurring or dissenting opinion, three members of the court did not participate in the decision. The order, available here, reads in pertinent part:

The court of
appeals rejected petitioners’ [takings] claims, and
petitioners sought review in this Court.

While their petition has been pending, we have issued our opinion in Severance v. Patterson,
370 S.W.3d 705, 725 (Tex. 2012), concluding that “avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.” We now conclude that this case should be remanded to the court of appeals for further consideration in light of Severance.

***

It is not readily evident that this order forecloses any of the State’s arguments surrounding mootness, avulsion, and waiver moving forward.

On the first, the appellate decision in Brannan ultimately applied only to three claimants, for the other eleven claimants’ homes were destroyed by natural tidal surges prior to the court’s ruling; moreover, since 2009, all of the land at issue in the case has lain seaward of the high tide line and thus is subject to the public trust.

On the second, it is not clear that the shoreline in this area migrated landward as the result of an avulsive event. If the shoreline —and, thus, the public easement— migrated landward as the result of imperceptible erosion, Severance says that the easement does "roll" under Texas common law (such that the claimants would have no property right capable of being taken).

On the third, the State has alleged that the landowners waived their Severance claim. Though a remand “for further consideration in light of Severance” could be interpreted to say that the landowners have not waived their Severance claim, it seems that the Court might have mentioned waiver in its order (which it pondered for nine months after issuing Severance) if it actually was deciding the waiver question.

Stay tuned to the Environmental Law Professor’s Blog for updates on Brannan as this beach access dispute heads back to the court of appeals.

In a recent opinion posted in Bloomberg news, Cass Sunstein argues that the United States should act unilaterally in addressing climate change. This is an interesting argument coming from Sunstein, whose scholarship has highlighted the economic costs of "unilateral U.S. action. In his recent opinion piece, he acknowledges the economic objection, which he terms as the Sophisticated Objection, to unilateral action. He provides three responses to counter the objection. First, U.S. leadership will likely persuade other countries to follow. Second, regulation will spur technological development, as did the ozone depletion treaty. Third, not all regulation will be costly to the U.S.; some may actually prove beneficial.

Each argument is valid and has been made by those favoring U.S. action on climate action in the past. Also, Sunstein acknowledges that there is no guarantee that unilateral action will yield an international agreement. The question, however, is whether U.S. action can be construed as unilateral action at all. And, whether the current design for international action is viable.

To be sure, from a limited perspective of comparing the United States with China, the former's action would be unilateral. However, a handful of Annex I countries are already committed to multilateral climate action. If the U.S. were to join in a climate treaty, it would simply strengthen the existing climate pact, at least in terms of participation. If, on the other hand, Sunstein is referring to unilateral action outside the Kyoto Protocol, it is unlikely that such action will persuade an international agreement. It may spur more "unilateral" action.

And then there is the bigger question: is the Kyoto Protocol design suitable to address the complex problem of climate change? As I argued in a short essay published in the Environmental Law Reporter recently, developing countries may simply not be equipped to implement market mechanisms to address climate change. Achieving measurable emissions reduction may then prove futile.

Thus, while U.S. participation in the multilateral process to address climate change is critical and would be extremely beneficial to moving forward on the climate change debate, the long term multilateral legal solution to the problem requires much more thought.

The Fordham Environmental Law Review has announced it will
celebrate the 20th Anniversary as a law review in 2013. The ELR is an outgrowth
of the Fordham Environmental Law Council founded in 1969. In 1989, the Fordham
Environmental Law Report began publishing environmental law-related articles,
but the Report had yet to receive official journal certification from the
Fordham Law faculty. In 1993, the Environmental Law Journal was granted its
journal status and shortly thereafter was named the Environmental Law Review.
The journal is founded on excellence and high quality scholarship and intends
to elevate the status of the journal to new heights this coming year.

In November 2012, the Editorial Board announced a
celebratory project to expand its readership and improve its scholarly
contributions in recognition of this milestone. Entitled The Fordham
Environmental Law Review's 20th Anniversary: The State of Environmental Law,
the landmark book is due for publication in April 2013. The book's goal is to
produce novel discourse and cross-dialogue on the current state of
environmental law by showcasing essays from some of the most distinguished
environmental law scholars in the United States, which will serve to highlight
the trajectory of the environmental law discipline in the last 20 years, where
the discipline stands today and where it is heading tomorrow.

A WTO Panel recently gave its ruling on a renewable energy dispute brought against Canada by the European Union and Japan, separately [Canada-Certain Measures Affecting the Renewable Energy Sector]. Japan and the EU had challenged Ontario's Green Energy and Green Economy Act (OGEA) as violating WTO's Agreement on Subsidies and Countervailing Measures (ASCM), Agreement on Trade-related Investment Measures (TRIMs), and Articles III and XXIII of the General Agreement on Tariffs and Trade (GATT). The OGEA provided certain government assistance to its renewable energy sector, including feed-in tariff or price guarantees, but conditioned the benefits on producers using domestic content. One closely watched issue was whether the financial assistance constituted a prohibited subsidy under ASCM, i.e. whether the grant of a financial benefit conditioned on domestic content use was prohibited under ASCM.

Interestingly, the Panel did not reach the question whether the subsidy was prohibited. Instead, it ruled that the financial contribution by the government did not constitute a subsidy, because it did not confer a benefit on the producers. In arriving at this decision, the WTO Panel relied on one test for making a "benefit" determination, i.e. whether the financial contribution was not available to the producer in the market. The Panel essentially ruled that given the nature of electricity market, it could not find a free market for electricity that could serve as a benchmark for its analysis. In simple terms, the Panel found that there was no benchmark to determine what the market price for the renewable energy would be since electricity as a commodity was subsidized, and thus, it could not determine whether a benefit had been conferred. Therefore, the Panel found that the OGEA did not violate ASCM.

However, the Panel went further and found that the OGEA nevertheless violated TRIMs, which regulates protectionist measures in relation to investment, such as requiring domestic content use. The ruling requires Canada to remove the domestic content requirement. This is an interesting twist to the case, which could nevertheless test the willingness of nations to provide subsidies to their renewable energy sector, unless there is a domestic benefit in the form of job creation or economic growth.

The issue clearly does not rest here and the question that remains open is whether under TRIMs Canada can invoke GATT Article XX environmental exceptions, since renewable energy expansion constitutes an important tool in mitigating climate change. Even though none of the Parties involved categorized the dispute as a trade and environment dispute, the Panel decision may draw Parties closer to that issue.

Ok, so we should still worry about population, but perhaps its time to start worrying about it in a much different way. For so long we have seen exponential population growth, and at times I have found myself mired in the depressing thought that the earth will one day be literally consumed by a zillion-billion human parasites sucking the last vestige of life from the planet (dose of sensationalism intended). Yet there is most likely an end in sight - a number upon which we can focus and begin to worry instead about how to manage the environment considering the relatively precise number of people that will be on the planet.

An article in Discover magazine recently highlighted that "population growth . . . has drawn the
lion’s share of public attention," with the world expected to reach about 9-10 billion by 2050, but that "although
billions of people are still in the pipeline, global population growth is
slowing so rapidly that a decline in the population later this century seems
unavoidable." Indeed, fertility rate is dropping rapidly almost everywhere around the world, but for sub-Saharan Africa (where it will eventually drop). As a result, "fertility collapse and accelerated aging have supplanted overpopulation as the most salient demographic trend." A country needs a fertility rate of 2.1 to replace its population (the .1 accounting for infant mortality). The article highlights that currently two-thirds of the 222 countries and territories in the world have fertility rates below 3, and 1/3 of those countries maintain rates under 2 (thus losing population). Though China is known for its high population, its fertility rate is now 1.5.

These numbers indicate that as developing countries continue to develop, their populations will continue to drop. The drop in population's beneficial effect on the environment, however, is offset (if not made worse) by the increase in a population's consumption. Nonetheless, the first step in knowing the exact parameters of consumption within which we must work is homing in on a more precise number of people on the globe with a specific level of environmental impact. At least there is comfort that a number is out there as a reference for managing the world's resources - comfort that we are likely to avoid the population bomb put forth by Paul Ehrlich. Granted, we may face a climate change bomb with the same environmental effects described by Ehrlich, or worse, but at least we are able to better understand where the world's demographic trends will lead us.

So, what to do with 9-10 billion people? Our resources are currently stretched to the max, and we are consuming 1.3 earth's worth of resources with the current population. Obviously, something must change in order to manage population/consumption dynamics over the next century. Population decline, of course, raises a whole host of other potential social and economic ills. Yet, if we can just make it over the hump, learn how to consume less per individual with less of an environmental footprint, align global market incentives and economic systems with environmental protection, and see populations fall across the board, then our ancestors 1,000 years hence may just wonder why we were so worried about population after all.